Court Strikes Down Anti-Porn Law

Oct. 26, 2007

By SCOTT MICHELS

For those Americans so inclined, rest assured: A federal appeals court has just made it easier to take naked pictures of yourself and post them on the Internet.

The Sixth Circuit Court of Appeals in Cincinnati earlier this week ruled that a federal anti-child pornography law, the Child Protection and Obscenity Enforcement Act, violates the First Amendment. The law required "producers" and distributors of certain sexually explicit pictures and films to keep detailed records of the names and ages of their subjects and allow the government to inspect those records.

The court's ruling, which held that the law restricted constitutionally protected speech, is likely to be a boon to the online pornography industry, which has lately seen the rise of YouTube-inspired sites, such as YouPorn and PornoTube, which feature amateur, user-generated photos.

"This law had really huge implications for the adult entertainment industry and, really, for any consenting adult couple who took nude photos of themselves," said Clay Calvert, co-director of the Pennsylvania Center for the First Amendment at Pennsylvania State University.

Charles Miller, a spokesman for the Department of Justice, said the government had not decided whether it would appeal to the U.S. Supreme Court.

"We are disappointed in the court's ruling," Miller said. "The statute was enacted to protect those who are underage from being used as performers in sexually explicit media."

The case was brought by Connection Distributing Co., which publishes a swingers' magazine that featured sexually explicit photographs of couples who want to meet other couples. Connection argued that the law, which carried up to five years in prison for violations of its record-keeping requirements, would deter readers from buying the ads.

The court agreed, saying the law, though designed to stop child pornography, would "chill" constitutionally protected speech. The statute defines a "producer" of pornography as anyone who makes certain kinds of sexually explicit material.

"To appreciate why speech would be chilled, consider the following," Judge Cornelia Kennedy wrote in the majority opinion. "A couple wishes to take photographs of themselves engaging in sexual activity. To do so means compiling records, affixing statements, maintaining such records for at least five years and opening their property up for visitation by government officials to inspect the records."

The ruling, which applies in Ohio, Kentucky, Tennessee and Michigan, has particular resonance for what Calvert called a "new frontier" of adult content — user-generated pornography Web sites, which usually sell advertising rather than subscriptions. While pornographic DVD sales continue to fall, the Web site YouPorn, for example, now ranks as one of the Top 100 most visited Web sites, according to Alexa, which tracks Internet traffic.

"The adult industry is latching onto the Web 2.0 banner just like mainstream sites are," said Frederick Lane, author of "Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age." "This ruling will make it much easier for adult sites to use a user-driven Web site model."

Until now, he said, the statute "was a pretty large club hanging over their heads."